Carmichael

This is the second appeal in this cause. The first trial of the case resulted in a judgment for the defendant, from which judgment the plaintiff appealed, and the judgment was reversed by the supreme court, the decision being rendered and filed on June 18, 1918. (See 178 Cal. 446 , [ 173 Pac. 999 ].)

On the former appeal, as on this, the principal question submitted for determination was whether a certain written instrument which was and is made a part of the complaint and which was identified evidentially as Exhibit “B” does or does not constitute an account stated or evidence of such an account, the plaintiff’s action being entirely based upon said instrument, as to which the theory of the complaint was that it was a stated account between defendant and the American Cañón Water Company (subsequently transferred to plaintiff), whereby the former acknowledged an indebtedness to the said water company in the sum of $4,126.65, being a settlement of previous contracts or transactions between them.

The pleadings are as they were originally settled and upon which both the first and the present trials were had.

The complaint sets out in sufficient detail the transactions culminating…